SIDDAPPA Vs. CHANDBEE HYDERABAD

JUDGEMENT

(1.) THE present appeal preferred is by the complainant against the judgment of acquittal passed by the Addl. District and Sessions Judge, Dharwad, sitting at Hubli in Crl.A.No.84/2006, dated 24.06.2008.

(2.) THE brief factual matrix of the case are: The appellant herein (hereinafter called as the 'complainant') filed a private complaint against the respondent (hereinafter called as the 'accused') in CC No.1660/2005 on the file of the learned JMFC II, Hubli, for the offence punishable under Section 138 of the Negotiable Instruments Act. In fact, the accused appeared in the said case, contested the proceedings. After due contest, the learned JMFC, Hubli convicted the accused person, sentencing the accused to pay fine of Rs.5,000/ - and to undergo Simple imprisonment for one year and in default of payment of fine to undergo Simple imprisonment for a further period of three months. Further, the learned Magistrate has also awarded compensation of Rs.1,65,000/ - to the complainant. The said order was challenged by the accused in Crl.A.No.84/2006 before the Sessions Judge and after due contest, the appeal was allowed and the accused was acquitted and compensation amount and the fine amount deposited by the complainant were ordered to be refunded to the accused. Hence, the complainant is before this Court in appeal.

(3.) IT is the case of the complainant that accused has availed hand loan of Rs.1,65,000/ - prior to 2005 and for repayment of the said loan, accused had issued a cheque dated 21.3.2005, drawn on Bank of Baroda, Dharwad Branch. On presentation of the said cheque to the Syndicate Bank, Supermarket Branch, Hubli, the cheque came to be dishonoured with a shara 'insufficient funds'. The complainant got issued a legal Notice on 3.7.2003 and the said notice was duly served on the accused and the accused after service of the said notice neither replied nor complied the notice. Therefore, the complainant presented a complaint before the II JMFC, Hubli. On perusal of the records, the tenor of the cross examination of PW1 and the defence evidence led by the accused, reveals that he has taken up the contention that one Mehaboob Sab Shaik, who is no other than the relative of the accused approached a financier by name Somshekar of Dharwad and obtained a loan of Rs.40,000/ - in -turn, the said Somshekar/ financier asked for a surety from the said Mehaboob Sab Shaik. The said Mehaboob sab Shaik approached the accused for surety. Therefore, the accused who is no other than the sister -in -law of the said Mehaboob sab shaik issued a cheque in dispute to the said Somshekar as a security for the repayment of the debt taken by Mehaboobsab shaik. It is specifically contended that she has not issued any cheque at any time nor borrowed loan of Rs.1,65,000/ - from the complainant.